Monday, February 27, 2017

In June, 2015, the US District Court for
Minnesota determined that the 700+ clients at the Minnesota Sex Offender
Program were being unconstitutionally confined.
In January, 2017, the US Court of Appeals for the Eighth Circuit said they’re
not. What explains the conflicting opinions? A three-judge Appeals Panel said District Court
Judge Donovan Frank did not apply the proper standard: to be unconstitutional, civil
rights violations for SVPs must “shock the conscience.” What’s wrong with the “shocks the conscience” standard? If, until the Supreme Court intervened in
2008, executing sex offenders in the US didn’t “shock the conscience,” how can
any lower court know where that bar is?

A
Brief Recap. In December, 2011, 14 clients who had been civilly committed
and incarcerated at MSOP, some for more than 20 years, filed a civil rights lawsuit in the US District Court for
Minnesota. The Federal Court
determined the petition had merit, gave it class status, and from 2012 to 2015,
Judge Frank carefully
reviewed the sexual offender civil commitment (SOCC) scheme in
Minnesota, examined MSOP (effectively, SOCC as applied), considered multiple independent
reports, ordered the State to create a task force to make recommendations, appointed
four (ATSA) experts to advise the Court, implored
Minnesota political leadership to correct course, held a six-week evidentiary
trial, and considered all the evidence before issuing his well-reasoned ruling. Judge Frank found the SOCC Act in Minnesota
unconstitutional for six reasons, and MSOP unconstitutional for six related
reasons. The State appealed to the Eighth
Circuit.

The
State Appealed. In Appeal briefs, the
State argued that plaintiffs failed to identify any specific clients who were
improperly confined. Attorneys for
clients countered that the State doesn’t know which clients at MSOP currently
meet criteria for confinement. The State
alleged judicial bias. The Eighth
Circuit said Judge Frank had not acted improperly. The State raised three challenges to
jurisdiction. The Eighth Circuit
rejected all of them. The State argued
that the District Court erred in applying the ‘strict scrutiny’ standard to the
SOCC scheme in Minnesota, which therefore requires SOCC to be “narrowly
tailored to achieve a compelling governmental interest.” Therein lies the Eighth Circuit’s reversal.

The Eighth Circuit said that ‘strict
scrutiny’ and ‘narrowly tailored’ is the standard “reserved for claims of
infringement on ‘fundamental’ liberty interests...” but that the US Supreme
Court (SCOTUS) “has never declared that persons who pose a significant danger
to themselves or others possess a fundamental liberty interest in freedom from
physical restraint,” and that therefore the proper standard is whether SOCC
“bears a rational relationship to a legitimate government purpose.” With deference to legislative intent and a state’s
responsibility for public safety, the Eighth Circuit reversed all six of Judge
Frank’s unconstitutional determinations related to Minnesota’s SOCC scheme.

The Eighth Circuit went on to examine how
the State has implemented SOCC. The
Appellate Court held that the District Court should have determined whether actions
violated a fundamental liberty interest AND whether those actions “shock the
conscience:” actions by the State that were “egregious or outrageous,” or
“inspired by malice or sadism rather than merely careless or unwise excess of
zeal that it amounted to a brutal and inhumane abuse of official power
literally shocking to the conscience.”

In applying the “shocks the conscience”
standard, the Court held that those attacking the implementation of SOCC laws
have the burden to “negate every conceivable basis which might support it.” The Appellate Court acknowledged that
Minnesota State law entitles SVP clients to “competent medical care and
treatment,” but that SCOTUS has not recognized “a broader due process right to
appropriate or effective or reasonable treatment…” And finally, the Eighth
Circuit reversed Judge Frank’s six remaining unconstitutional findings
regarding SOCC “as applied,” saying those findings were really just “a
criticism of the statutory scheme itself.”

Reconsideration. As the last recourse before an appeal to
SCOTUS, on January 31, 2017, the attorneys representing MSOP clients filed an “en
banc” petition – a request for the full Eighth Circuit to reconsider the three-judge
panel’s ruling. Last week, without
comment, the US Court of Appeals denied the plaintiffs’ petition for review.

Commentary. After more than 20 years and about 750
clients, two clients have been unconditionally released by the Courts (over the
objections of MSOP staff), and no clients have gained full discharge by
completion of treatment. Since the
commencement of this federal lawsuit, about a half-dozen clients have been
provisionally released from MSOP, but effectively that means endless treatment
is replaced by endless supervision.

Judge Frank expressed concern that, if
not for this federal lawsuit, clients would languish at MSOP and wrote that “there
is no meaningful relationship between the treatment program and an end to
indefinite detention.” The Eighth
Circuit said that doesn’t matter - as long as clients were once judicially
determined to be dangerous, and there are vehicles for redress, they can be confined
indefinitely. What if vehicles for
redress are inadequate or a pretense for relief? Does it seem disingenuous that the State can
confine citizens indefinitely for treatment, and simultaneously argue that
there is no constitutional right to treatment?
The Appellate Court went further, stating that the Constitution does not
prevent “a State from civilly detaining those for whom no treatment is
available.” What if treatment is
available, but no one can complete it?

Apparently, it isn’t troubling to the Eighth
Circuit that the bar for release from MSOP is higher than the threshold into
SOCC? Or that the State agrees there are
numerous clients at MSOP who don’t need secure confinement, and less
restrictive alternatives are virtually non-existent. It seems the Eighth Circuit is not concerned
that for several years, two consecutive governors used executive orders to
summarily deny any releases from MSOP. Perhaps
what is most troubling about the Eighth Circuit ruling is the degree to which
the Court reasoned that bedrock civil rights are relative, not absolute. Freedom from confinement is not a “fundamental
liberty interest?” Violations of civil
rights for SVPs are only unconstitutional if such deprivations “shock
the conscience?” When it comes to what the State can do to control ‘sex
offenders,’ is it likely that there is any
government action, in the public’s mind, that would “shock the conscience?”

Long before this federal lawsuit, law
professor Rosalie Berger Levinson wrote that
it is Time to Bury the Shocks the
Conscience Test. The Minneapolis Star Tribune editorial
board wrote, “This chilling legal principle could one day threaten liberties
far beyond those of the 721 people in the Minnesota Sex Offender Program.” In an op-ed piece about the ruling, Harvard
Law Professor Noah Feldman wrote, “The
Eighth Circuit panel’s decision is wrong,” pointing to a SCOTUS opinion by
Justice Byron White that “freedom from bodily restraint has always been at the
core of the liberty protected by the Due Process Clause from arbitrary
governmental action.” Feldman noted that
the specific liberty at stake was the “liberty interest under the Constitution
in being freed from indefinite confinement in a mental facility.”

The Eighth Circuit ruled that SOCC in
Minnesota is “facially constitutional because it is rationally related to
Minnesota’s legitimate interests.” By
reversing Judge Frank’s highly
principled ruling, the Eighth Circuit effectively held that it’s not a
problem that the exits from MSOP are unabashedly blocked, even if the reasons
are incontrovertibly political. The
Appellate Court wrote repeatedly in their opinion that the Supreme Court has
not provided guidance on many of issues facing SOCC, and then simply ruled on
the side of state’s rights. In doing so,
the Eighth Circuit ratified SVPs as a subclass of US citizens whose constitutional
rights are far short of even prison inmates.

What’s
Next? Attorneys
representing MSOP clients have 90 days to appeal to the US Supreme Court. Even if the appeal is accepted, it might end
up being just the latest in a long series of SCOTUS rulings that, through the selective
application of empirical evidence, have downgraded the civil rights of Americans
who have sexually offended. But there is
a reason to be hopeful – MSOP clients and other SVPs who are truly in recovery
might have an ally at the Supreme Court.
Justice Anthony Kennedy was the swing vote in the 5-4 SCOTUS decision
that upheld SOCC in 1997. While Justice
Kennedy, in his concurring opinion in Kansas v. Hendricks, agreed to
SOCC in concept, he signaled that the
judiciary must ensure SOCC, in practice,
does not violate constitutional principles.
If the Supreme Court accepts the appeal, Judge Frank might be
vindicated, a SCOTUS ruling would provide new guidance to SVP laws in the US,
and MSOP clients may have a legitimate vehicle to gain release from SOCC. Once again, only the courts stand between civil
rights and government wrongs, and not all judges are created equal.

“…the Framers
presciently recognized that two of the three co-equal branches of government
were representative in nature and necessarily would be guided by self-interest
and the pull of popular opinion. If we
in the judiciary do not have the authority, indeed the responsibility, to right
fundamental wrongs left excused by a majority of the electorate, our whole
intricate constitutional system of checks and balances, as well as the oaths to
which we swore, prove to be nothing but shams.”

Monday, February 20, 2017

This may not be the sexiest or
most appealing sounding blog, but it reminds us of an important point that
impacts all of us in our day to day working – workforce development. We would
do well to remember that we work in a field were accountability is central,
risk management is the name of the game and knowledge is power. We as
professionals, practitioners and policy makers need to consistently keep
abreast of developments in the field.

Kieran was sitting in a department
meeting the other day were we discussed staff workload, programmes and
recruitment for the 2017/18 academic year. The meeting focused round the
undergraduate provision mainly but we did talk about postgrad teaching, PhD’s, Continual
Professional Development (CPD), partnership working, student placements, match funded
PhD’s and external training; it made me think about workforce development,
which is something that myself and David find ourselves discussing a lot, and
what this means for professionals, practitioners and the sexual abuse field in
general.

Currently, there is not always enough
money in organisations to send their staff to the conferences that they need
to, or want to attend. This lack of investment in workforce development becomes
more evident when discussing attendance at training events, short courses and
qualifications. We remember when business and organisations would pay for
members of staff to do MSc/MA or PhD’s as part of work force development; those
days are mainly gone now.

Kieran organises a lot of sex
offender conferences through the university, the majority of which have been
internally funded or funded by research councils (ESRC
& Leverhulme
trust are two examples), and are in the
process of starting to organise a conference that participants have to pay to
attend; this has been an interesting experience. What will organisations pay
for the training that their staff will be getting? What do they expect for
their money? How much of a say do they want in the discussion around content
and delivery? In the end they may not charge and find another way to fund it. That
may be okay in this instance, but it begs the question of how do staff upskill,
become more knowledgeable, and become aware of new research/development in the
area. Further, whose responsibility is it to make this possible? This is
particularly salient if you work in an area that requires you to have
professional accreditation, which psychology, counselling, the legal system and
social work (all areas that those that world in child protection and sex
offender management tend to come from) do.

An alternative argument that we
often hear to training and conferences is that professionals should read more
journals, books and literature from their area of work. They should set aside
time to develop their own skills base. While we don’t disagree with this, I
think that there is more to this than meets the eye. Yes, professionals and
practitioners can always read more but there are issues associated with this. For
instance, (1) how do they access the articles as many professionals in the
field do not have access to a vast array of journals; (2) what articles and
authors should they read to diversify their knowledge base to make sure that
they are not just reading the industry standard [regardless of how good they are];
(3) who pays for the licences, them or their employer?;(4) how do they know what they should be
reading, by who and when;and (5) what
are they reading for and how do they reintegrate it back into their own/their
organisations practice. All of this gets compounded by the fact that most
academics publish in pay for journals and books, open access publishing has not
reached the mass market yet and those open access publications and not
necessarily the ones that academics are encouraged to publish in. I am not
criticising either model, both have their pros and cons (currently Kieran sits
as an editorial board member and an Associate Editor on two journals with David
being an editorial board member on three journals) but it does highlight the
fact that professionals and non-academics may not have access to the papers
that they need to upskill themselves.

We do not think that sending
people on courses and paying for CPD is the only response available to the
question of staff development, there are examples of good practice within
professional organisations including, article clubs, research Q & A, partnership
with academic institutions nearby, support in supervision and annual staff
development rounds. What we are saying
is that maybe we need to think differently about how we invest in the
development of professional staff in the field so that they have access to
resources, training and discussion; so that they can be as up to date and as
able to help their clients as possible.

The current longitudinal study explored the
extent to which implicit and explicit evaluations of sexual aggression predict
subsequent sexually aggressive behavior. Participants (248 community men
recruited online) completed measures of implicit and explicit evaluations and
self-reported sexually aggressive behavior at two time points, approximately 4
months apart. Implicit and explicit evaluations of sexual aggression at Wave 1
had small significant and independent predictive relationships with sexually aggressive
behavior at Wave 2, while controlling for sexually aggressive behavior at Wave
1. This is the first study to test whether implicit and explicit evaluations predict
subsequent sexually aggressive behavior. Our findings are consistent with the
possibility that both implicit and explicit evaluations may be relevant for
understanding and preventing subsequent sexually aggressive behavior. If these
findings can be replicated, evaluations of sexual aggression should be studied
with more rigorous methodology (e.g., experimental design) and
correctional/forensic populations, and possibly addressed in risk assessment
and interventions.

Could you talk us through
where the idea for the research came from?

Evaluations are an
individual’s evaluative thoughts about something such as a person, object, or behavior
(e.g., Albarracín, Zanna, Johnson, & Kumkale, 2005; Ajzen,
2001; Gawronski & Bodenhausen, 2007). Social psychology theory and
research support the idea that evaluations, in part, predict behavior (e.g.,
Ajzen 1991, 2001; Glasman & Albarracín, 2006;
Kraus, 1995). Empirical evidence suggests this is true whether the evaluations
are immediate (implicit evaluations) or deliberative (explicit evaluations),
and that both the automatic and deliberative evaluations are important (e.g.,
Greenwald & Farnham, 2000; Nosek & Smyth, 2007). From this research, my
colleagues and I hypothesized that how someone evaluates sexual aggression
would predict, in part whether or not they would engage in sexually aggressive behavior.

Prior to this study, we had
conducted cross-sectional correlational and experimental research examining
implicit and explicit evaluations of sexual aggression against adults. In some of
our studies, we found more positive implicit evaluations of rape were
associated with self-reported sexually aggressive behavior against adults and
self-reported likelihood to rape (Nunes, Hermann, & Ratcliffe, 2013), and in
all or our studies we found more positive explicit evaluations of rape were
associated with self-reported sexually aggressive behavior against adults and
self-reported likelihood to rape (Hermann, Nunes, & Maimone, 2016; Nunes,
Hermann, White, Pettersen, & Bumby, 2016; Nunes et al., 2013). These
studies provided preliminary evidence that evaluations are related to sexual
offending against adults. Prior to this
study, however, we hadn’t yet explored whether evaluations predict subsequent
sexually aggressive behavior against adults. This was an important next step
because if
evaluations are a causal factor for this type of behavior, then we would expect
that they would predict whether or not people engage in future sexually
aggressive behavior.

We also
wanted to explore this research question using a sample of men recruited from
the community. Sexually aggressive behavior encompasses behaviors that differ
in tactic (verbal coercion to physical aggression) and sexual acts (unwanted
kissing or touching to penetrative acts). We know that many sexual assaults go
undetected, and even if they are detected, may not result in official charges
or convictions. This means that individuals with convictions for sexual
aggression may not be fully representative of men who engage in sexually
aggressive behavior against adults. In our past research we have used student
samples, but these samples tend to be fairly homogeneous in their demographic
characteristics, so they also may not be fully representative of men who engage
in sexually aggressive behavior against adults. Community samples can offer
diversity and complement samples of students and men with convictions for
sexual aggression.

What
kinds of challenges did you face throughout the process?

There were
several logistical challenges we faced while conducting this research. The
first was conducting this type of research online with a sample of community
men. We needed to be able to get quality data and compensate participants for
their efforts. We tried several different methods of collecting data online
before settling on using Qualtrics and recruiting from a panel of participants.

A second challenge we faced was setting up the
implicit measures in the Qualtrics survey environment. We hired a computer
programmer to help with the development of these measures, but still had to
work closely with the computer programmer to tailor the measures to our needs. We used a combination of computer code (javascript) and
pre-existing Qualtrics’ functions to present the blocks and trials, randomize
the presentation of stimuli, and record reaction times for our IAT measures.

What do you believe to be to
be the main things that you have learnt about evaluations of Sexual Aggression
in predicting sexually Aggressive Behavior in men in the community?

This research is preliminary, but suggests that
explicit and implicit evaluations are relevant for understanding sexual
aggression against adults. This is consistent with the social psychology
literature noted above and suggests we should continue to explore the role
evaluations may play in sexual aggression against adults.

This research was part of a series of studies I conducted for my
dissertation (also see Hermann et al., 2016; Hermann, 2015). From these
studies, we also learned that the pattern of relationships between evaluations
and past sexually aggressive behavior and self-reported likelihood to rape was
consistent for samples of students and community men. A common critique of research on sexual aggression conducted
with student samples is that the results may not generalize to other samples of
men (i.e., community or incarcerated samples). The results of the current study
suggest that this may not be the case for research exploring the relationship
between evaluations of sexual aggression and sexually aggressive behavior. Next
we would like to try to replicate these findings with incarcerated samples of men
with convictions for sexual aggression against adults to determine if research
conducted with students and community men could also generalize to this
population.

Now that
you’ve published the article, what are some implications for practitioners?

We would suggest that more rigorous research is needed replicating and
expanding this line of research before there are implications for practitioners.
However, if future research finds evaluations predict sexually aggressive behavior against adults,
that evaluations of sexual aggression can change, and that change is associated
with changes in sexually aggressive behavior, then evaluations of sexual
aggression would be an important target in risk assessment and treatment.

Kieran McCartan, PhD

Chief Blogger

David Prescott, LICSW

Associate blogger

Translate

The Association for the Treatment of Sexual Abusers (http://atsa.com/) is an international, multi-disciplinary organization dedicated to preventing sexual abuse. Through research, education, and shared learning ATSA promotes evidence based practice, public policy and community strategies that lead to the effective assessment, treatment and management of individuals who have sexually abused or are risk to abuse.

The views expressed on this blog are of the bloggers and are not necessarily those of the Association for the Treatment of Sexual Abusers, Sexual Abuse: A Journal of Research & Treatment, or Sage Journals.

Disclaimer

ATSA does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content posted. ATSA does not necessarily or automatically endorse any opinions expressed within this blog. You understand that by reading this blog, you may be exposed to content or opinions that might be offensive, harmful, inaccurate or otherwise inappropriate. Under no circumstances will ATSA be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content or opinions posted, emailed, transmitted, or otherwise made available via this blog.